Negligence and Damages Bill

Negligence and Damages Bill

A private members Bill has been introduced in Parliament with the purpose of reforming the laws relating to bereavement damages following a death and relating to damages for psychiatric injuries.

The Bill has been introduced by Andy McDonald who is the MP for Middlesbrough, and will extend the list of prescribed relationships for people to claim under this header to include civil partners and children over the age of 18.

Psychiatric Injury to Secondary Victims

The Bill extends the common law approach to psychiatric injury suffered by so called secondary victims.

Since the Hillsborough disaster the courts have limited the circumstances in which damages are awarded (Alcock v Chief Constable of South Yorkshire [1992] 1 A.C. 310) e.g. to close relatives of people who have been injured or killed. It decided in that case that relatives who saw the incident unfold on television or who heard about it on the radio were not entitled to compensation but those who witnessed their loved ones being injured at the stadium itself would be entitled to compensation if they could prove the extent of the injury.

Following this decision the court will not normally award compensation unless the primary incident is shocking and the secondary victim is a close relative of the primary victim (such as a parent or a spouse) and was close in space and time to the accident that caused the injury.

A Shocking Event

There is uncertainty as to whether a string of events constitutes a "single event" for this purpose. In North Glamorgan N.H.S Trust v Ceri Ann Walters [2002] EWCA Civ 1792, little Elliot went into hospital. As a result of the hospital's negligence Elliot's condition deteriorated. He was transferred from the first hospital to a second and then to a third. His parents followed the ambulances in their own car. Elliot died about 48 hours after admission. The parents sustained recognised psychiatric injuries as a result of their trauma. The Health Authority argued that they were not entitled to compensation because (i) there was no single "event" and (ii) since the parents were in the car not the ambulance they were not sufficiently proximate to the events that led to Elliot's death. The court disagreed and awarded compensation.

The Proximity Test

There is uncertainty as to how close a secondary victim must be to the accident. In McLoughlin v O'Brien [1983] 1 A.C. 410, Mrs McLoughlin was telephoned to say her husband and children were on their way to hospital following an accident. She rushed to the hospital and arrived to see her children and husband arriving, covered in blood and obviously very seriously injured. She sustained psychiatric injury as a result. The defendants argued that because she was not at the scene of the accident she was not entitled to compensation for her psychiatric injury. The courts disagreed and awarded compensation for the proven psychiatric injuries.

Reform

The new Bill proposes that anyone can make a claim for psychiatric injury if it is reasonably foreseeable that they might suffer such an injury (and if they have in fact developed that injury) as a result of the "close tie of love and affection" that existed between the primary victim and the secondary victim.

Psychiatric Injury in Mesothelioma Cases

This is a particularly welcome development in the context of mesothelioma and other asbestos disease claims.

At present it is fairly clear that the widow of someone who dies from mesothelioma is not entitled to compensation for any psychiatric injury, simply because there was no single "shocking event". That perhaps seems unfair when the same woman whose husband is killed in a work accident may be entitled to compensation for any psychiatric injuries. We see in our mesothelioma practice many occasions where the wife gives up work to look after her terminally ill husband and develops clinical depression which prevents her from returning to work for what can be an extended period. In future she may be able to claim compensation.

Lost Years Claims

The Bill also proposes changes to the way compensation is award in cases involving terminal illnesses such as the asbestos cancer of mesothelioma.

The Bill proposes that the court should award something for the fact that sufferer is aware that their expectation of life is reduced, over and above the pain and suffering of the injury itself.

The Bill also proposes that losses in the "lost years" (the period by which the claimant's lifespan is reduced) should "give credit" for 25% of their net income to take account of basic living expenses. This compares with the current "rule of thumb" which is to deduct some 50%. Where a claim is brought by a dependent widow under the Fatal Accidents Act 1976 the usual deduction is somewhere between 25% and 33%, depending mainly on whether there are any dependent children. This proposal therefore aligns the value of a "living" claim more closely with the value of a "fatal" claim. This reduces the iniquity of having to advise a dying client that their claim might be worth more if it is settled after his death instead of in his lifetime.

Eligible Dependents

The Bill also proposes to extend the range of persons who can claim compensation following the death of a loved one. At present the list is set out in the Fatal Accidents Act 1976 and limits the range of people who can claim compensation to close family members. This causes injustice to more distant family members when they can prove they will suffer a financial loss as a result of the death. The Bill also provides that such persons can claim compensation for stress and anxiety suffered in anticipation of the death; for grief and sorrow arising after the death; and for the loss of non-pecuniary benefits in the future.

The Bill proposes that the dependency of the deceased's relatives shall be calculated as 75% of the deceased's net income, bringing this quantity into line with the compensation that would be awarded to the sufferer in his own lifetime.

Actuarial Principles

Lastly the Bill addresses a technical point that actuarial calculations should be undertaken as at the date of trial rather than as at the date of death. This follows the recommendations of the Ogden Working Party and the Law Commission in their Report 263 (Claims for Wrongful Death), and follows the "actuarial" approach that applies in Scotland. It overturns the somewhat discredited decision of the Court of Appeal in Cookson v Knowles [1979] A.C. 556 which has been criticised in a number of subsequent cases (such as White v Esab [2002] PIQR Q6, H v S [2002] EWCA Civ 792, Fletcher v A Train [2008] EWCA Civ 413.) This has the effect of protecting claims from inflationary erosion when much time elapses between the date of death and the date of the trial.

Timing

The Bill is expected to have its second reading debate in the Houses of Parliament in early December.